Movant's application for late claim relief pursuant to Court of Claims Act § 10 (6) is denied.
|Claimant short name:||KIM|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||Caption amended to reflect the only properly named defendant.|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Brian Kim, Pro Se|
|Defendant's attorney:||Hon. Eric T. Schneiderman, NYS Attorney General
By: Glenn C. King, Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||December 28, 2017|
|See also (multicaptioned case)|
Movant seeks permission to file and serve a late claim to recover for damages for injuries sustained as a result of movant's wrongful confinement from September 19, 2016 through December 27, 2016. Due to a clerical error, defendant did not submit papers in opposition to movant's motion for late claim relief.
As an initial matter, to the extent that the instant claim asserts a cause of action under 42 USC § 1983, such a cause of action may not be maintained in the Court of Claims, given that the State is not a "person" for purposes of the statute (see Brown v State of New York, 89 NY2d 172, 185 ; Zagarella v State of New York, 149 AD2d 503, 504 [2d Dept. 1989]; Ohnmacht v State of New York, 14 Misc3d 1231 [A], at *2 [Ct Cl 2007]).
Movant's proposed claim alleges that the New York State Department of Corrections and Community Supervision (DOCCS) failed to credit 95 days of pre-sentence confinement toward his term of imprisonment. Initially, because movant's proposed claim sounds in wrongful confinement, it is subject to a one-year statute of limitations under CPLR article 2 (see Court of Claims Act § 10 ; CPLR 215; Nanton v State of New York, UID No. 2017-038-578 [Ct Cl, DeBow, J., Oct. 12, 2017]). Claimant asserts an accrual date of December 27, 2016, which is the date that he was released from the wrongful confinement (Boose v City of Rochester, 71 AD2d 59, 65 [4th Dept. 1979]; Ramirez v State of New York, 171 Misc 2d 677, 680 [Ct Cl 1997]). As his motion seeking permission to file and serve a late claim was served upon defendant on June 12, 2017, it is timely under the CPLR. Accordingly, the Court must determine: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the State was substantially prejudiced by the delay; (5) whether claimant has any other available remedy; and (6) whether the claim appears to be meritorious (see Court of Claims Act § 10 ). While the presence or absence of any one of these factors is not dispositive (see Williams v State of New York, 133 AD3d 1357 [4th Dept. 2015]), the last factor is generally the most decisive inasmuch as "'it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion'" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept. 2010], affd sub nom Donald v State of New York, 17 NY3d 389 , quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept. 1993]).
As to the first factor, movant alleges that he was unaware that his claim needed to be filed within 90 days of the accrual date pursuant to Court of Claims Act § 3-b. He also alleges that he had "substantial obligations" to fulfill after his release from imprisonment, including reporting to both State and Federal parole authorities, the New York City Human Resources Administration, and a mandatory drug and alcohol treatment program. As to movant's first contention, ignorance of the law is not a valid excuse for failure to timely file a claim (Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept. 2002], lv denied 99 NY2d 589 ). Movant's second contention asserts that he simply had too many obligations that prevented him from filing a claim. This contention is also not an acceptable excuse for movant's failure to timely file a claim (Olomonsai v State of New York, UID No. 2009-009-035 [Ct Cl, Midey, J., Dec. 8, 2009]). Nevertheless, the absence of an excuse for late filing is only one of the factors considered by the Court in reviewing a late claim application and does not necessarily preclude the relief sought here (see generally Williams v State of New York, 133 AD3d at 1357).
The next three factors - defendant's notice of the issues, opportunity to investigate, and prejudice - are interrelated and therefore frequently considered together. Here, movant alleges that defendant had actual notice and opportunity to investigate the essential facts of his claim because he filed a petition for a writ of habeas corpus on or about July 5, 2016, and defendant responded to the petition. Movant's assertion establishes that defendant did have actual notice and an opportunity to investigate the essential facts of his claim, and that defendant would not suffer prejudice if movant's late claim application were granted (Matthews v State of New York, UID No. 2016-018-727 [Ct Cl, Fitzpatrick, J., July 20, 2016]). Thus, these three factors weigh in favor of granting movant's application for late claim relief.
With respect to the factor of alternative remedies, the Court notes that movant did have a remedy immediately available to him by filing an application for a writ of habeas corpus pursuant to CPLR Article 70 (Marsh v State of New York, UID No. 2012-041-076 [Ct Cl, Milano, J., Sept. 26, 2012]). Thus, this factor does not weigh in movant's favor.
Turning then to the final factor, in order to establish a meritorious cause of action, movant must establish that the proposed claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Court of Claims Act § 10 ; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). While there is a heavier burden on a movant who is seeking to file late than upon a claimant whose claim is timely (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11), in order to meet that burden, a proposed claim need only have "the appearance of merit" (Witko v State of New York, 212 AD2d 889, 891 [3d Dept. 1995]). A proposed claim "must set forth the nature of the claim, the time when and place where it arose, the damages or injuries and the total sum claimed" (Morra v State of New York, 107 AD3d 1115, 1115 [3d Dept. 2013]; see Court of Claims Act § 11 [b]). "While absolute exactness is not necessary, a [movant] must provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of [its] liability" (Sommer v State of New York, 131 AD3d 757, 757-758 [3d Dept. 2015] [internal quotation marks and citations omitted]).
With respect to his claim of wrongful confinement, movant is "required to show that (1) defendant intended to confine him, (2) he was conscious of the confinement, (3) he did not consent to the confinement, and (4) such confinement was not otherwise privileged" (Cass v State of New York, 134 AD3d 1207, 1208 [3d Dept. 2016], lv dismissed 27 NY3d 972  [internal quotation marks and citations omitted]; accord Miller v State of New York, 124 AD3d 997, 998 [3d Dept. 2015]). Here, movant alleges that he was entitled to a credit toward his term of imprisonment for 95 days of pre-sentencing confinement, and that defendant did not grant the credit to which movant was entitled despite movant's repeated requests. Although movant's proposed claim establishes the first three elements of his wrongful confinement claim, exhibits attached to movant's application undermine the overall merit of his claim, as the exhibits show that movant's confinement was privileged.(2) A Return submitted by the Attorney General's Office in response to movant's application for a writ of habeas corpus notes that Penal Law § 70.30 (3) bars movant's jail time credit from being applied to both his State and federal sentences (Exhibit D). A letter from an attorney for Prisoners' Legal Services of New York explains to movant that because he received two separate sentences-one in State court and one in federal court-he was only eligible to receive jail time credit on one sentence. In this case, movant received jail time credit on his federal sentence. Thus, he could not receive jail time credit on his State sentence as well. Considering the abovementioned exhibits, the Court finds that movant has failed to establish that his claim has merit. Thus, this factor does not weigh in movant's favor.
Based upon the foregoing, it is hereby ordered that movant's motion for permission to file a late claim ( M-90594) is denied.
December 28, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, dated June 12, 2017; Affidavit of Brian Kim in Support of Motion, affirmed by movant on June 12, 2017, with Exhibits.
2. Correspondence from Glenn C. King, AAG, dated August 4, 2017.
2. The Court notes that its consideration of the application's merit is not limited to the proposed claim. Rather, the various papers supporting the application will be considered in their entirety (see Dippolito v State of New York, 192 Misc 2d 395, 397 [Ct Cl 2002] [holding that in determining a late claim application "the court may examine the proposed causes of action, as well as all submitted papers and exhibits"]).